NBCY v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 922

FEDERAL COURT OF AUSTRALIA

NBCY v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 922 MIGRATION - judicial review - protection visa - no adverse credibility findings - applicant had well-founded fear of persecution in North Korea - applicant had a right to enter and re-enter South Korea - applicant expressed serious concerns for safety of his immediate family in North Korea if returned to South Korea - Refugee Review Tribunal dismissed such concerns because family members were not applicants - submission to Refugee Review Tribunal that applicant would suffer psychological harm in South Korea arising from fears for his family not expressly articulated - failure to consider relevant consideration - failure to consider important "integer" of applicant's claim - error of law going to jurisdiction - persecution to the applicant arising from threat to family - "effective protection" principle - protection obligations - all possible steps - possible application of s 36(4) of the Migration Act 1958 (Cth) - application granted - matter remitted to Refugee Review Tribunal. Migration Act 1958 (Cth) s 36

Al-Anezi v Minister for Immigration and Multicultural Affairs [1999] FCA 355 cited HTUN v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 cited SCAT v Minister for Immigration and Multicultural Affairs [2003] FCAFC 80 cited El-Merhabi v Minister for Immigration and Multicultural Affairs [2000] 96 FCR 375 cited Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 discussed NAGV of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 202 ALR 1 discussed NAEN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 6 cited Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487 distinguished Mandla v Lee [1983] 2 AC 548 cited Australian Public Service Association v The Australian Trade Commission (1988) EOC 92-228 cited Styles v The Secretary of the Department of Foreign Affairs and Trade & Anor (1988) EOC 92-239 cited